93 Decision Citation: BVA 93-14285
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-09 168 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for spinal fusion, at
C3, 4 and 5, secondary to removal of a tumor with cervical
spondylosis, currently evaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Associate Counsel
INTRODUCTION
Initially, we note that the veteran served during World
War II. The matter is currently before the Board of
Veterans' Appeals (Board) from a December 1991 rating
decision of the Department of Veterans Affairs (VA) Roanoke,
Virginia, regional office (RO). The veteran filed a notice
of disagreement with that decision in January 1992, and the
RO issued a statement of the case in March 1992. The
substantive appeal was received in April 1992, and the
appeal was received and docketed at the Board in June 1992.
The case was subsequently referred to The American Legion,
the veteran's representative, and that organization issued
an informal hearing presentation in support of the veteran's
claim in July 1992. The representative has declined further
comment or argument after notification of additional
evidence as contemplated by Thurber v. Brown, No. 92-172
(U.S. Vet.App. May l4, l993).
In a December 1991 rating decision, the RO granted service
connection for cervical spondylosis of the C5-C6 and C6-C7
vertebrae and determined that that disorder was a direct
manifestation of the veteran's service-connected spinal
fusion. The manifestations of this disorder included pain
radiating to the right arm. Because the symptoms of
cervical spondylosis and his service-connected cervical
spine disability are the same, the RO evaluated them as a
single disability. 38 C.F.R. § 3.310 (1992).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO was wrong in denying an
increased evaluation for spinal fusion, at C3, 4 and 5,
secondary to removal of a tumor. Essentially, he contends
that the 40 percent evaluation currently assigned for that
disability fails to adequately reflect its severity.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board the preponderance of the evidence is
against the veteran's claim for entitlement to an increased
evaluation for spinal fusion, at C3, 4 and 5, secondary to
removal of a tumor with cervical spondylosis.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's cervical spine disability is productive of
no more than severe impairment.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 40
percent for spinal fusion, at C3, 4 and 5, secondary to
removal of a tumor with cervical spondylosis, are not met.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §4.7,
Part 4, Code 5293 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
We note that the veteran has presented a well-grounded claim
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) as
it is not implausible. Murphy v. Derwinski, 1 Vet.App. 78
(1990). We are also satisfied that all relevant facts have
been properly developed by the RO. Additionally, we find
that the RO has no further duty to assist the veteran in the
development of his claim as mandated by the provisions of
38 U.S.C.A. § 5107(a) (West 1991).
In accordance with Schafrath v. Derwinski, 1 Vet.App. 589
(1991), we have considered the history of the veteran's
cervical spine disability, and that history may be briefly
described. Service medical records show that the veteran
was discharged from service due to a benign giant cell tumor
on the fourth cervical vertebra. By rating action in June
l944, the RO granted service connection for benign tumor of
the cervical spine with deformity and bone destruction and
assigned a 20 percent evaluation for that disability,
effective in June 1944.
A VA examination performed in June 1945 revealed complaints
of pain and limitation of motion of the cervical spine. At
another VA examination in August 1946, the veteran
complained of numbness in the right arm 2 to 3 times a
week. Examination showed no stiffness, tenderness, or
rigidity, and the examiner was unable to palpate any spinal
processes beneath the well-healed laminectomy scar. A VA
examination in August 1947 revealed slight limitation in
bending and hyperextension of the cervical spine but good
flexion. Also, muscle power and tone of the cervical spine
and upper extremity were excellent. At a July 1950 VA
examination, flexion and lateral flexion of the cervical
spine were unrestricted, but rotation and extension were
restricted 10 degrees. There was also pain elicited on
palpation. In January 1966, a VA examiner found no
noticeable restriction of the cervical spine. There were
some paresthesias and dysesthesias in the cervical
distribution of C2, C3, and C4 chiefly, but examination of
the cervical spine and upper extremities was otherwise
normal. The RO subsequently assigned a 30 percent
evaluation for the veteran's cervical spine disability under
the provisions of Diagnostic Code 5287 of the VA Schedule
for Rating Disabilities, 38 C.F.R. Part 4 (1992), effective
in October 1965.
An October 1978 VA examination revealed pain without
tenderness, full range of motion but with pain, and
complaints of numbness in both arms. Following a VA
examination in August 1989, the RO assigned a 40 percent
schedular evaluation for spinal fusion, at C3, 4 and 5,
secondary to removal of a tumor, under the criteria of Code
5299-5293, effective in January 1989.
The most significant evidence with regard to the current
claim includes the results of VA examinations in August
1989, April 1990, and October 1991, information contained in
VA outpatient treatment records dated from September 1989 to
April 1991 and treatment records and letters from private
physicians dated in 1989 and 1991. That evidence, the more
recent objective evidence of record, presents the most
accurate picture of the veteran's current disability.
The August 1989 VA examination revealed flexion of the
cervical spine to 20 degrees, extension to 20 degrees,
lateral flexion to 20 degrees, and rotation to 30 degrees.
While a private physician's examination in June 1991
revealed minimal extension and 30 degrees of lateral
rotation, there was 30 degrees of flexion. Also, the VA
examination in October 1991 showed some restriction of
extension and flexion, and lateral motion was restricted to
30 degrees. According to the Physician's Guide for
Disability Evaluation Examinations, normal motion of the
cervical spine is flexion to 30 degrees, extension to 30
degrees, lateral flexion to 40 degrees, and rotation to 55
degrees. After comparing the normal measurements to those
elicited upon examination, we find that limitation of motion
of the cervical spine is moderate to severe. 38 C.F.R. Part
4, Code 5290 (1992).
At a June 1991 private physician's examination, while deep
tendon reflexes were absent at the biceps and brachial
radialis bilaterally, even with augmentation, they were 2+
at the triceps. Also, he had no pathologic reflexes, and
sensory testing in the right upper extremity disclosed
decreased sensation over the point of the shoulder, right
thumb and medial side of the forearm. With regard to
pinprick, two point discrimination was 5 millimeters in the
left upper extremity, 8 millimeters on the ulnar side of the
right upper extremity, and greater than 10 millimeters on
the radial side of the right hand. At the October 1991 VA
examination, ankle jerk was 0/0, biceps were -1/-2, brachial
radialis were -1/-2, and triceps were -2/-1.2. Thus, while
absent ankle jerk and other neurological findings
appropriate to the site of the diseased disc have been
shown, such findings are no more than severe. 38 C.F.R.
Part 4, Code 5293 (1992). We point out that at the October
1991 VA examination pulses were good and sensory was okay.
Also, it is significant that there was normal strength in
the legs and upper extremities. While the right upper
extremity did give way, there was no definite weakness.
Additionally, at the private physician's examination
performed in June 1991, there was tenderness over the lower
cervical spine, the trapezius muscles bilaterally, and the
biceps deltoid to the elbow. There was about 4 or 5
strength in the entire right upper extremity. X-rays
associated with that examination revealed significant
spondylosis especially at C5-C6 and C6-C7 and some foraminal
stenosis bilaterally. It was also noted that magnetic
resonance imaging (MRI) performed in June 1991 showed that
there was some impingement of the cord at the C5-6 disc
level.
Significantly, most of the findings of the nerve conduction
velocity studies performed in September 1991 were normal
except for prolonged right ulnar motor nerve distal latency,
and it was noted that the findings were consistent with
compressive neuropathy of the deep branch of the right unlar
nerve. As for the electromyogram (EMG), the results were
also normal except that the veteran was unable to relax his
right and left cervical paraspinal muscles for examination.
The MRI revealed marked degenerative change with large
osteophytes especially at C5-6 and C6-7. The examiner's
opinion was that there was severe spondylosis with moderate
spinal stenosis at the C5 and C6 levels. Additionally, it
is significant that the VA examiner in August 1989 concluded
that the veteran's cervical spine disability with loss of
sensory motor function of the right hand represented a
moderate impairment of the veteran's daily activities in and
out of the home. That examiner also described the pain on
motion of the cervical spine as slight.
Based on the preponderance of the evidence, we find that the
veteran's cervical spine disability is productive of no more
than severe impairment and that a 40 percent evaluation most
closely reflects the severity of that disability. 38 C.F.R.
§ 4.7, Part 4, Code 5293 (1992).
We have also reviewed the other pertinent provisions of 38
C.F.R. Part 3 and 4 in accordance with Schafrath, 1 Vet.App.
589, but find them not applicable to this case. For
example, this case does not present such an exceptional or
unusual disability picture as to render the use of the
regular schedular standards impractical. Significantly, the
cervical spine disability has not required hospitalization
for many years. Also, in a letter dated in January 1989,
James L. Schmidt, M.D., a private physician, related that
the veteran's level of disability at that time was total.
However, we do not find that opinion very persuasive with
regard to the interference with employment produced by the
veteran's cervical spine disability. Dr. Schmidt reported
that the veteran's occupation as a truck driver ended
because of progressively worsening pain and depression and
noted that injuries to the neck often produce recurrent
pain, neurological problems, and varying degrees of
anxiety. It is interesting to note that, in a letter dated
in July 1989, Dr. Schmidt related his opinion that the
veteran's degree of disability was worth a 50 to 60 percent
evaluation. At that time, he referred to the veteran's many
different neurological deficits, hypertensive cardiovascular
disease compensated by medication, and severe depressive
disorder in partial remission. Finally, Dr. Schmidt did not
offer specific findings such as those included in the
records of the examinations discussed above. Therefore, we
find the previously discussed medical evidence more
persuasive than Dr. Schmidt's opinion. Based on the
preponderance of the evidence, we find that the veteran's
cervical spine disability alone has not caused interference
with employment beyond that reflected by the 40 percent
evaluation currently assigned. Accordingly, an
extra-schedular evaluation for the veteran's cervical spine
disability is denied. 38 C.F.R. § 3.321(b) (1992).
ORDER
A evaluation in excess of 40 percent for spinal fusion, at
C3, 4 and 5, secondary to removal of a tumor with cervical
spondylosis, is denied.
(CONTINUED ON NEXT PAGE)
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
WARREN W. RICE, JR. ROBERT D. PHILIPP
*
(Member temporarily absent)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), the decision of the Board of Veterans' Appeals less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a notice of disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.